The Case of the Desert Cross Goes Before the Supreme Court

By Kevin Fayle on October 7, 2009 11:26 AM

The Supreme Court's Establishment Clause jurisprudence is, quite
simply, a confusing mess when it comes to religious monuments on public
land. So much so that two different cases involving displays of the
Ten Commandments heard on the same day can end up with different
results.

For these types of cases, the Court has typically
engaged in an ad hoc, fact-based examination of the situations
surrounding the monuments in order to determine whether they violated
the Constitution's prohibition on advancement of a single religion by
the government.

That being so, the Court should have fun with Salazar v. Buono, oral arguments for which occurred this morning. The facts surrounding this case are convoluted as well as novel.
The dispute concerns a cross erected without authorization on federal
land by the Veteran of Foreign Wars over 70 years ago to commemorate
fallen US soldiers. The cross, which sits in the massive, 1.6 million
acre Mojave National Preserve, has been the site of Easter sunrise
services since it was first built.

The National Park Service denied the construction of Buddhist shrine
near the monument in 1999, and admitted that it was looking into
removing the cross because of its religious connection. In 2000,
however, Congress intervened and prohibited the use of federal funds to
remove the cross. Congress next designated the cross as a national
monument dedicated to US soldiers who fell during World War I.

Then
along came Frank Buono, a former assistant superintendent of the
preserve, who sued to remove the cross. A federal district court sided
with Buono and held that the monument's primary effect was to advance
religion in violation of the Establishment Clause. The NPS appealed,
but while the case was proceeding, Congress pulled a sneak play and
ordered the Interior Department to give the land upon which the cross
sat to the VFW in exchange for private land within the preserve. The
transfer required the VFW to maintain a war memorial on the land, or
else it would revert back to federal ownership.

Eventually,
the Ninth Circuit agreed with the lower court and held that the
monument violated the Establishment Clause. It did not decide whether
the transfer of land was valid, however.

So Buono brought
another suit challenging the land swap. The district court and 9th
Circuit both sided with him again, holding that the transfer did not
end the constitutional violation.

The government's appeal to the
Supreme Court raised two issues, arguing that Buono had no standing to
sue, and that the Congressional transfer of land was an adequate remedy
to the constitutional transgression.

At argument today,
the Court seemed to focus on the latter of the government's two
arguments, despite Justice Scalia's eagerness to focus on the
underlying Establishment Clause question and Solicitor General Elena
Kagan's attempts to direct the Court's attention to the issue of
Buono's standing.

The focus on Congress' "reversionary
interest" in the land seemed to destine this case to be an interesting
sidenote in the Court's Establishment Clause history. Regardless of
how the Court rules, if it focuses on the actions Congress took as a
proper or improper remedy for an Establishment Clause offense, it will
remove any sweeping impact that this case may have had.

So
despite the major issues that parties on both sides wanted to raise, it
looks like this case may end up just like the cross in question: an
almost unnoticeable speck in a vast wilderness.

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